state in international law

State

Introduction

States are the principal subjects of international law. Lauterpacht observed that;

“The orthodox positivist doctrine has been explicit in the affirmation that only states are subjects of international law”.

For the term “state” no exact definition is possible, however there are some essentials characteristics, which are well settled under Article 1 of the Montevideo Convention of 1933 on the Rights and Duties of States.

State as Legal Personality;

In any legal system, certain entities, whether they be individuals or companies, will be regarded as possessing rights and duties enforceable at law, so can sue and be sued. They are able to do this because the law recognises them as ‘legal persons’.

Personality involves the examination of certain concepts within the law such as status, capacity, competence, as well as the nature and extent of particular rights and duties. And personality in international law necessitates the consideration of the interrelationship between rights and duties afforded under the international system and capacity to enforce claims.

Personality is a relative phenomenon varying with the circumstances. One of the distinguishing characteristics of contemporary international law has been the wide range of participants. These include states, international organisations, regional organisations, non-governmental organisations, and individuals etc.

And despite the increasing range of actors and participants in the international legal system, states remain by far the most important legal persons and despite the rise of globalisation and all that this entails, states retain their attraction as the primary focus for the social activity of humankind and thus for international law.

Definition of State

According to Salmond;

“State is a community of people which had been established for some objectives such as internal order and external security”.

According to Lawrence;

“State is a society which is politically organised and its members are bound with each other by being under some central authority and most of the people automatically follow the rule of this central authority”.

The Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 1 declared that;

“the state is commonly defined as a community which consists of a territory and a population subject to an organised political authority’ and that ‘such a state is characterised by sovereignty”.

Essentials characteristics for a State

Oppenheim said in this regards that;

“A State proper in contradistinction to colonies, is in existence when the people is settled in a country under its own sovereign Government”. The conditions which must obtain for the existence of a State are therefore four;

1.      There must be people.

2.      There must be a country in which people has settled down.

3.      There must be a Government.

4.      There must be sovereign government. Sovereignty means independent supreme authority.

Classification of States;

States generally can be classified into fully sovereign independent states and dependent states.

According to Oppenheim, A State in its normal appearance does possess independence all around, and therefore full sovereignty. Yet there are some states which do not possess full sovereignty.

Sovereignty has been defined by Max Huber in Island of Palmas Arbitration, in his words;

“Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State, the functions of a State”.

Article 1 of the Montevideo Convention on Rights and Duties of States, 1933;

Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most widely accepted formulation of the criteria of statehood in international law. It notes that the state as an international person should possess the following qualifications:

a)      A permanent population;

b)      A defined territory;

c)      Government; and

d)      Capacity to enter into relations with other states.

1. A permanent population;

This characteristic is considered to be most important physical criteria. The existence of a permanent population is naturally required and there is no specification of a minimum number of inhabitants, as examples such as Nauru and Tuvalu demonstrate. As quoted by Salmond, in Jurisprudence 7^th ed 1924 “A wandering people is not a state”.

How permanent population is to be determined under international law is known as Law of Nationality, e.g. Israel Nationality criteria, Indian or Pakistani acquisition of Nationality criteria. Permanent population is a legal requirement, and no ethnic, linguistic, historical, cultural and religious homogeneity is required. And if such issues arises they will be dealt under heads of;

·         Minorities

·         Right to self-determination, or

·         Indigenous people

2. A defined territory;

The defined and controlled territory provides the basis of “Territorial Sovereignty”, which can be defined as “the exclusive competence to take legal and factual measures within territory”.

This is most important among other characteristics, as pointed out by J. G. Starke’s, that fixed territory is not essential to the existence of a state provided that there is an acceptable degree of what is characterised as ‘consistency’ in the nature of territory in question and of its population, although in fact all modern states are contained within territorial limits. For example Israel was admitted as a member state of the United Nations in May 1949 notwithstanding that its boundaries were not then defined with precision, pending, negotiations regarding demarcation.

Accordingly, alterations, whether by increase or decrease, in the extent of a particular state’s territory, do not of themselves change the identity of that state. Nor need the territory possess geographical unity, it may consist of territorial areas, lacking connection, or distant from each other.

What matters is the presence of a stable community within a certain area, even though its frontiers may be uncertain. Indeed, it is possible for the territory of the state to be split into distinct parts, for example Pakistan prior to the Bangladesh secession of 1971 or present-day Azerbaijan.

Leading cases   

The Island of Palmas (or Miangas) case;

Facts of the case are that;

Ø  By virtue of the Treaty of Peace of 10 December 1898, Spain ceded the Philippine Islands to the United States. This archipelago of Philippines included a small island named Island of Palmas (or Miangas), located between the archipelago of the Philippines and the Dutch East Indies. In 1899, the Treaty of Paris was notified to the Netherlands, which did not make any observations as to the delimitation of the Philippines. In 1906, an official of the United States paid a visit to the island which led to the conclusion that the island was considered by the Netherlands as forming part of the territory of its possessions. The United States informed the Netherlands by diplomatic correspondence that the United States claimed sovereignty over the island based on the cession by Spain. The Dutch Government also claimed sovereignty of the island on the basis of having exercised sovereignty there for more than 200 years. They could not reach an agreement and the Parties agreed to submit the claims to an arbitral tribunal composed of a sole arbitrator.

Decision;

Ø  Arbitrator was Mr. Huber and date of award was 4 April 1928, and Mr. Huber had to determine “whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory”.

Ø  With regards to the sovereignty, Mr. Huber elaborates sovereignty as under;

1.      Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.

2.      If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title – cession, conquest, occupation, etc. – superior to that which the other State might possibly bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical.

3.      The principle that continuous and peaceful display of the functions of State within a given region is a constituent element of territorial sovereignty.

·         Conclusion;

The arbitrator held that;

·         The claim of the United States to sovereignty over the Island of Palmas (or Miangas) is derived from Spain by way of cession under the Treaty of Paris. The Treaty, has not created in favour of the United States any title of sovereignty such as was not already vested in Spain.

·         The United States base their claim on the titles of discovery, of recognition by treaty and of contiguity, i.e. titles relating to acts or circumstances leading to the acquisition of sovereignty, they have however not established the fact that sovereignty so acquired was effectively displayed at any time.

·         The Netherlands on the contrary found their claim to sovereignty essentially on the title of peaceful and continuous display of State authority over the island. And finally arbitrator held that THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of Netherlands territory.

North Sea Continental Shelf cases;

Brief facts of the case are;

Germany v Denmark and the Netherlands [1969] (also known as The North Sea Continental Shelf cases) were a series of disputes that came to the International Court of Justice in 1969. They involved agreements among Denmark, Germany, and the Netherlands regarding the “delimitation” of areas, rich in oil and gas, of the continental shelf in the North Sea.

Decision;

But with regards to the absolute certainty in boundaries, ICJ held that; “precise determinations of its boundaries…no rule that land frontiers of a state must fully delimited and defined…often in various places and for long they are not…”. 

So, again it is reiterated here that, in practice what matters is that the “State consistently controls a sufficiently identifiable core of territory”.

 

3. Government;

For a political society to function reasonably effectively it needs some form of government or central control. However, this is not a precondition for recognition as an independent country. It should be regarded more as an indication of some sort of coherent political structure and society, than the necessity for a sophisticated apparatus of executive and legislative organs.

Effective Control;

For a third core requirement ‘government’ it can understand that it means, ‘effective control’. Controls may be;

a.       Internal controls

b.      External controls

Internal controls when administered through constitutional apparatuses, is also known as ‘constitutional autonomy’. While external control is ‘the ability to act…autonomously international level without being legally dependent on other States’. ‘Effective control’ does not means mere existence of a government.  

International Committee of Jurists Report on Finland;

As an example of the former tendency one may note the Aaland Islands case of 1920. The report of the International Committee of Jurists appointed to investigate the status of the islands remarked, with regard to the establishment of the Finnish Republic in the disordered days following the Russian revolution, that it was extremely difficult to name the date that Finland became a sovereign state. It was noted that:

“This certainly did not take place;

·         Until a stable political organisation had been created, and

·         Until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of the foreign troops”.

Same way State of Palestine as declared by Palestine Organisation in 1988, were not considered as State, due to lack of ‘effective control’ over the claimed territory.

Exception to Effective Control;

Recent practice with regard to the new states of Croatia and Bosnia and Herzegovina emerging out of the former Yugoslavia suggests the modification of the criterion of effective exercise of control by a government throughout its territory. Both Croatia and Bosnia and Herzegovina were recognised as independent states by European Community member states and admitted to membership of the United Nations at a time when both states were faced with a situation where non-governmental forces controlled substantial areas of the territories in question in civil war conditions. In such situations, lack of effective central control might be balanced by significant international recognition, culminating in membership of the UN.

At the end nevertheless, a foundation of effective control is required for statehood. But conversely, however, a comprehensive breakdown in order and the loss of control by the central authorities in an independent state will not obviate statehood.

The state does not cease to exist, if civil war deprive it of effective control temporarily e.g. Lebanon de facto position. Similarly Somalia is unique in its example, wherein albeit lack of government control, UNSC Resolution authorised humanitarian intervention, and all territory occupied in wartimes, but State continues to exist. 

4. Capacity to enter into relations with other states;

The capacity to enter into relations with other states is an aspect of the existence of the entity in question as well as an indication of the importance attached to recognition by other countries because it is essential for a sovereign state to be able to create such legal relations with other units as it sees fit.

Although it is not generally accepted as a necessary essential but, the American Law Institute emphasised to retain this criteria, by prescribing that;

“An entity is not a State…unless…it is…competence, within its own constitutional system, to conduct international relations with other States as well as the political, technical and financial capabilities to do so…” 

Capacity of independence; 

The essence of such capacity is independence. This is crucial to statehood and amounts to a conclusion of law in the light of particular circumstances. This question was raised in relation to the grant of independence by South Africa to its Bantustans. In the case of the Transkei, for example, a considerable proportion, perhaps 90 per cent, of its budget at one time was contributed by South Africa, while Bophuthatswana was split into a series of areas divided by South African territory. Both the Organisation of African Unity and the United Nations declared such ‘independence’ invalid and called upon all states not to recognise the new entities. These entities were, apart from South Africa, totally unrecognized.